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Court Says Four Dams Violating Water Act by Staff and Wire reports Commentary, Spokesman Review, February 17, 2001

Judge gives Corps of Engineers 60 days to find ways to protect fish

PORTLAND -- A federal court ruled Friday that the U.S. Army Corps of Engineers' operation of four Snake River dams violates the Clean Water Act, a decision that could cost the agency millions of dollars to modify the dams to protect endangered salmon.

"I cannot overstate the importance of this ruling for native salmon and steelhead," said Kristen Boyles, an attorney with Earthjustice Legal Defense Fund.

U.S. District Court Judge Helen Frye in Portland ordered the corps to find ways -- within 60 days -- to lower water temperatures behind the dams to protect the river's water quality and threatened and endangered salmon and steelhead.

The ruling supports environmental groups, who were joined by Idaho's Nez Perce tribe and the state of Oregon in the suit. They said the dams raise water temperatures and add levels of nitrogen that violate water quality standards.

"This decision is a huge victory for all who care about the salmon and clean water," said David Cummings, attorney for the Nez Perce. The ruling "confirms that the corps, just like everyone else, must comply with the Clean Water Act."

Operation of the four dams in Eastern Washington has made a significant contribution to poor water quality on the lower Snake, making the river slower, deeper and too hot for fish, said Tim Stearns of the National Wildlife Federation.

The release of water over the dams sends nitrogen into the water, also harming fish.

Stearns said the ruling allows the corps to decide whether to make structural changes to the dams, or operational changes, such as altering the way it releases water.

Corps officials had no comment Friday. But in a letter last June to the U.S. Environmental Protection Agency, the corps' Northwest commander said it may not be possible to meet the standards with the dams in place.

"To our knowledge, it is presently not practicable to modify existing (Snake and Columbia river dams) to meet temperature standards, although some projects can be operated to release cooler water from the reservoir and thus help lower the downstream water temperature," Brig. Gen. Carl Strock wrote.

On the Snake River, the cooling Strock mentioned in his letter is accomplished by releasing water from behind Idaho's Dworshak Dam on the Clearwater River, a tributary of the Snake. However, that will be severely limited this year because much of the water behind Dworshak already has been drained to generate electricity.

Environmentalists and some fisheries biologists have warned that draining the reservoir puts Snake River salmon in jeopardy. Northwest power producers said it was necessary to help ease the power crisis.

In his letter to the EPA, Strock indicated that complying with the Clean Water Act was a matter of policy "to the extent practicable," and not a legal requirement. That statement brought a strong rebuttal in August from regional EPA chief Charles Findley, whose views were shared by the federal court.

In Friday's written ruling, the court said "it was clear error of judgment by the corps not to address compliance with its legal obligations under the Clean Water Act."

Rob Masonis, a spokesman for the conservation group American Rivers, said there is only one practical way for the corps to comply with Friday's ruling.

"The obvious solution is to remove the dams," he said. "That is what we have been recommending, in order to comply with the Clean Water Act and be in compliance with the Endangered Species Act."

Under the National Marine Fisheries Service's plan for saving Columbia Basin salmon from extinction, breaching remains a remote option.

However, the Bush administration previously has said that breaching the dams is not an option, and every member of the Northwest congressional delegation opposes breaching.